Citation Nr: 0409372
Decision Date: 04/09/04 Archive Date: 04/16/04
DOCKET NO. 97-06 723A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for a cervical spine
disorder.
2. Entitlement to a rating in excess of 20 percent for a
left knee disorder, characterized as residuals of a lateral
meniscectomy of the left knee, with post-traumatic arthritis.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARINGS ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from June 1982 to June
1985.
This matter initially came to the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama. By a rating action of January 1994, the
RO denied the veteran's claim of entitlement to a rating in
excess of 20 percent for his service-connected left knee
disorder. He perfected a timely appeal to that decision. In
September 1997 and December 1998, the Board remanded this
matter for additional development. In May 1999, the veteran
presented testimony at a personal hearing, via
videoconference, before a Veterans' Law Judge. A transcript
of the hearing testimony has been associated with the claims
file. In July 1999, the Board again remanded the case to the
RO for still further development.
By a rating action in October 2000, the RO denied the
veteran's claim of entitlement to service connection for a
neck condition secondary to a service-connected low back
disorder. The veteran perfected a timely appeal to that
decision. On October 25, 2001, the veteran appeared at the
RO and testified at a videoconference hearing before the
undersigned Veterans Law Judge, sitting in Washington, DC.
The veteran accepted this hearing in lieu of an in-person
hearing. A transcript of the videoconference hearing is of
record.
By a decision dated January 14, 2003, the Board denied the
issues on appeal. The veteran subsequently appealed this
matter to the United States Court of Appeals for Veterans
Claims (Court). In March 2003, the VA Secretary filed a
motion with the Court, requesting that the Board decision be
vacated and the case remanded for consideration of the notice
and duty to assist provisions of the Veterans Claims
Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107. See Charles v. Principi,
16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002); see also Ardison v. Brown, 6 Vet. App. 405,
407 (1994). By Order entered in April 2003, the Court
granted this motion, vacated the January 2003 BVA decision,
and remanded the case to the Board for readjudication and
disposition consistent with the Joint Motion and the VCAA.
In October 2003, the Board notified the veteran's
representative that the claim had reached the Board and that
further evidence and argument could be submitted. In
November 2003, the representative submitted further argument
and evidence in support of the veteran's claims. While the
veteran waived RO consideration of the new evidence, since
the case must be remanded for compliance with VCAA
provisions, the service representative requested that the
case be remanded to the RO for consideration of the new
evidence in support of the claim for service connection for a
cervical spine disorder.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the veteran
if further action is required on his part.
REMAND
In the March 2003 Motion, the Secretary argued that a remand
was required because the January 2003 Board decision on
appeal did not present sufficient reasons to support its
conclusion that the VA had provided adequate notice to the
veteran of the information and evidence necessary to
substantiate his claims for service connection on a secondary
basis and for a higher rating for a left knee disorder. In
this regard, the Secretary indicated that, in Quartuccio v.
Principi, 16 Vet. App. 183 (2002), the Court held that
failure by the Board to enforce compliance with the section
5103(a) requirement for VA to inform the claimant of
information or evidence necessary to substantiate the claim,
as well as inform the claimant which evidence VA would seek
to obtain and which evidence the claimant was to provide, was
remandable error. See Quartuccio, 16 Vet. App. at 186-187.
In addition, the Secretary reported that in Charles v.
Principi, 16 Vet. App. 370 (2002), the Court found that,
although the Board had stated in its decision that the notice
and duty-to-assist provisions under the VCAA had been
satisfied, the Board failed to adequately discuss the amended
duty to notify.
According to the Secretary's Motion, the Board, in its
January 2003 decision, had concluded that the duty to notify
had been satisfied without adequately discussing which
documents provided the required notice under 38 U.S.C.
§ 5103(a). See Charles, 16 Vet. App. at 373-74; see also 38
U.S.C. § 7104(d)(1) (Board was required to provide a written
statement of reasons or bases for its findings and
conclusions on all material issues of fact and law presented
on the record); Allday v. Brown, 7 Vet. App. 517, 527 (1995).
Although the evidence of record reflects that, in an Informal
Hearing Presentation, dated in May 2002, the veteran's
service representative stated that nothing further was
offered and the case was being submitted for appellate
deliberations and decision, the Secretary, in the Motion,
found that the Board's January 2003 decision should be
vacated and remanded for readjudication in light of the
Court's holdings in Quartuccio and Charles. Such a
conclusion was reached even though the Board specifically
noted that the discussion in the rating decisions, the
statement of the case, the supplemental statements of the
case, and in the letters sent to the appellant from the RO
during the course of the appeal had informed him of the
information and evidence that was yet needed to substantiate
his claims.
In an Order, dated in April 2003, the Court granted the Joint
Motion, vacated the Board's January 2003 decision, and
remanded the case, pursuant to 38 U.S.C.A. § 7252(a) (West
2002), for compliance with the directives stipulated in the
Motion. Copies of the Court's Order and the Motion have been
placed in the claims file.
In light of the above, the Board will remand the veteran's
claim to ensure full and complete compliance with the
enhanced duty-to-notify and duty-to-assist provisions enacted
by the VCAA. Although the Board, in its January 2003
decision, pointed to specific documents of record that
provided notice, the Motion nevertheless found the analysis
wanting. This strongly suggests that the documents
identified by the Board did not in fact satisfy the VCAA
duty-to-notify requirements. To ensure that those
requirements are indeed met, the Board will remand this case.
Accordingly, this case is hereby remanded to RO for the
following actions:
1. The RO must review the claims file in
order to ensure that any notification and
development action required by the VCAA
is completed. In particular, the new
notification requirements and development
procedures set forth at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002)
must be fully complied with and
satisfied, to include full compliance
with the decisions in Quartuccio and
Charles, as well as the Secretary's
Motion dated in March 2003.
2. Thereafter, the RO should
readjudicate the issues on appeal. If
any benefit sought remains denied, the
veteran and his representative should be
furnished a supplemental statement of the
case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim, including a summary of the
evidence received since the issuance of
the last SSOC, to include all the
evidence submitted directly to the Board
in November 2003, and applicable law and
regulations considered pertinent to the
issues currently on appeal, including 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002). An appropriate period of time
should be allowed for response.
After the above actions have been accomplished, the case
should be returned to the Board for final appellate review,
if otherwise in order. The purposes of this remand are to
comply with due process of law and to further develop the
veteran's claim. No action is required of the veteran until
he receives further notice. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition
warranted in this case, pending completion of the above.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).